1-1 By: Shapiro S.B. No. 181
1-2 (In the Senate - Filed January 9, 1997; January 15, 1997,
1-3 read first time and referred to Committee on Jurisprudence;
1-4 April 1, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0; April 1, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 181 By: Duncan
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the conservatorship of a child by the Department of
1-11 Protective and Regulatory Services.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subsection (c), Section 262.201, Family Code, is
1-14 amended to read as follows:
1-15 (c) If the court finds sufficient evidence to satisfy a
1-16 person of ordinary prudence and caution that there is a continuing
1-17 danger to the physical health or safety of the child and for the
1-18 child to remain in the home is contrary to the welfare of the
1-19 child, the court shall:
1-20 (1) issue an appropriate temporary order under Chapter
1-21 105; and
1-22 (2) inform each parent in open court that parental and
1-23 custodial rights and duties may be subject to restriction or to
1-24 termination unless the parent or parents are willing and able to
1-25 provide the child with a safe environment.
1-26 SECTION 2. Subchapter A, Chapter 263, Family Code, is
1-27 amended by adding Sections 263.006, 263.007, 263.008, and 263.009
1-28 to read as follows:
1-29 Sec. 263.006. WARNING TO PARENTS. At the status hearing
1-30 under Subchapter C and at each permanency hearing under Subchapter
1-31 D held after the court has rendered a temporary order appointing
1-32 the department as temporary managing conservator, the court shall
1-33 inform each parent in open court that parental and custodial rights
1-34 and duties may be subject to restriction or to termination unless
1-35 the parent or parents are willing and able to provide the child
1-36 with a safe environment.
1-37 Sec. 263.007. DISMISSAL AFTER ONE YEAR. (a) Unless the
1-38 court has rendered a final order or granted an extension under
1-39 Subsection (b), on the first Monday after the first anniversary of
1-40 the date the court rendered a temporary order appointing the
1-41 department as temporary managing conservator, the court shall
1-42 dismiss the suit affecting the parent-child relationship filed by
1-43 the department that requests termination of the parent-child
1-44 relationship or requests that the department be named conservator
1-45 of the child.
1-46 (b) On or before the time described by Subsection (a) for
1-47 the dismissal of the suit, the court may extend the court's
1-48 jurisdiction of the suit for a period stated in the extension
1-49 order, but not longer than 180 days after the time described by
1-50 Subsection (a), if the court has continuing jurisdiction of the
1-51 suit and the appointment of the department as temporary managing
1-52 conservator is in the best interest of the child. If the court
1-53 grants an extension, the extension order must also:
1-54 (1) schedule the new date for dismissal of the suit;
1-55 and
1-56 (2) make further temporary orders for the safety and
1-57 welfare of the child as necessary to avoid further delay in
1-58 resolving the suit.
1-59 (c) If the court grants an extension, the court shall render
1-60 a final order or dismiss the suit on or before the date specified
1-61 in the extension order and may not grant an additional extension.
1-62 (d) For purposes of this section, a final order is an order
1-63 that:
1-64 (1) requires that a child be returned to the child's
2-1 parent;
2-2 (2) names a relative of the child or another person as
2-3 the child's managing conservator;
2-4 (3) without terminating the parent-child relationship,
2-5 appoints the department as the managing conservator of the child;
2-6 or
2-7 (4) terminates the parent-child relationship and
2-8 appoints a relative of the child, another suitable person, or the
2-9 department as managing conservator of the child.
2-10 Sec. 263.008. RETURN OF CHILD TO PARENT OR PLACEMENT WITH
2-11 RELATIVE. (a) Notwithstanding Section 263.007, the court may
2-12 retain jurisdiction and not render an order dismissing the suit or
2-13 terminating parental rights as required by that section if the
2-14 court finds that retaining jurisdiction under this section is in
2-15 the best interest of the child.
2-16 (b) If the court retains jurisdiction under this section,
2-17 the court shall render an order providing that:
2-18 (1) the department shall either return the child to
2-19 the child's parent or place the child with a relative of the child;
2-20 (2) the department shall continue to serve as
2-21 temporary managing conservator of the child;
2-22 (3) the department shall monitor the child and the
2-23 person with whom the child is placed under Subdivision (1) to
2-24 ensure that the child is in a safe environment; and
2-25 (4) the suit shall be dismissed not later than the
2-26 180th day after the date the order under this section is rendered.
2-27 Sec. 263.009. FINAL ORDER APPOINTING DEPARTMENT AS MANAGING
2-28 CONSERVATOR. (a) The court may render an order appointing the
2-29 department as managing conservator of the child without terminating
2-30 the parental rights of the child's parents if the court finds that
2-31 rendering the order is in the best interest of the child and that:
2-32 (1) there is no likelihood in the foreseeable future
2-33 of returning the child to the child's parent;
2-34 (2) a suitable relative of the child or other person
2-35 is not available for appointment as managing conservator of the
2-36 child; and
2-37 (3) grounds for terminating the parent-child
2-38 relationship under Section 161.001 do not exist or, if grounds for
2-39 termination do exist, the court finds that it is not in the best
2-40 interest of the child to terminate the parent-child relationship.
2-41 (b) In determining under Subsection (a)(3) that termination
2-42 of the parent-child relationship is not in the best interest of the
2-43 child, the court may take into consideration that:
2-44 (1) the child will reach 18 years of age in not less
2-45 than three years;
2-46 (2) the child is 12 years of age or older and has
2-47 expressed a strong desire against termination or being adopted; or
2-48 (3) the child has special medical or behavioral needs
2-49 that make adoption of the child unlikely.
2-50 (c) If the court renders an order under this section, the
2-51 court must include in the order specific findings regarding the
2-52 grounds for the order.
2-53 SECTION 3. Section 263.201, Family Code, is amended to read
2-54 as follows:
2-55 Sec. 263.201. STATUS HEARING; TIME. Not later than the
2-56 60th day after the date the court renders a temporary order
2-57 appointing the department as temporary managing conservator of a
2-58 child [of a full adversary hearing under Chapter 262], the court
2-59 shall hold a status hearing to review the child's status and the
2-60 permanency plan developed for the child.
2-61 SECTION 4. The heading to Subchapter D, Chapter 263, Family
2-62 Code, is amended to read as follows:
2-63 SUBCHAPTER D. PERMANENCY [REVIEW] HEARINGS
2-64 SECTION 5. Subsections (a) and (b), Section 263.301, Family
2-65 Code, are amended to read as follows:
2-66 (a) Notice of a permanency [review] hearing shall be given
2-67 as provided by Rule 21a, Texas Rules of Civil Procedure, to all
2-68 persons entitled to notice of the hearing.
2-69 (b) The following persons are entitled to at least 10 days'
3-1 notice of a permanency hearing [to review a child's placement] and
3-2 are entitled to present evidence and be heard at the hearing:
3-3 (1) the department;
3-4 (2) the foster parent or director of the group home or
3-5 institution where the child is residing;
3-6 (3) each parent of the child;
3-7 (4) the managing conservator or guardian of the child;
3-8 [and]
3-9 (5) an attorney ad litem appointed for the child under
3-10 Chapter 107;
3-11 (6) a volunteer advocate appointed for the child under
3-12 Chapter 107; and
3-13 (7) any other person or agency named by the court to
3-14 have an interest in the child's welfare.
3-15 SECTION 6. Section 263.302, Family Code, is amended to read
3-16 as follows:
3-17 Sec. 263.302. CHILD'S ATTENDANCE AT HEARING. The [court may
3-18 dispense with the attendance of the] child shall attend each
3-19 permanency hearing unless the court specifically excuses the
3-20 child's attendance. Failure by the child to attend a hearing does
3-21 not affect the validity of an order rendered at the [at a placement
3-22 review] hearing.
3-23 SECTION 7. Subchapter D, Chapter 263, Family Code, is
3-24 amended by adding Section 263.3025 to read as follows:
3-25 Sec. 263.3025. PERMANENCY PLAN. (a) The department shall
3-26 prepare a permanency plan for a child for whom the department has
3-27 been appointed temporary managing conservator. The department
3-28 shall give a copy of the plan to each person entitled to notice
3-29 under Section 263.301(b) not later than the 10th day before the
3-30 date of the child's first permanency hearing.
3-31 (b) In addition to the requirements of the department rules
3-32 governing permanency planning, the permanency plan must contain the
3-33 information required to be included in a permanency progress report
3-34 under Section 263.303.
3-35 (c) The department shall modify the permanency plan for a
3-36 child as required by the circumstances and needs of the child.
3-37 SECTION 8. Section 263.303, Family Code, is amended to read
3-38 as follows:
3-39 Sec. 263.303. PERMANENCY PROGRESS [STATUS] REPORT. (a) Not
3-40 later than the 10th day before the date set for each permanency
3-41 hearing other than the first permanency [review] hearing, the
3-42 department or other authorized agency shall file with the court and
3-43 provide to each party, the child's attorney ad litem, and the
3-44 child's volunteer advocate a permanency progress [status] report
3-45 unless the court orders a different period for providing the report
3-46 [or orders that a report is not required for a specific hearing].
3-47 (b) The permanency progress [status] report must:
3-48 (1) recommend that the suit be dismissed; or
3-49 (2) recommend that the suit continue and:
3-50 (A) identify the date for dismissal of the suit
3-51 under this chapter;
3-52 (B) provide:
3-53 (i) the name of any person entitled to
3-54 notice under Chapter 102 who has not been served;
3-55 (ii) a description of the efforts by the
3-56 department or another agency to locate and request service of
3-57 citation; and
3-58 (iii) a description of each parent's
3-59 assistance in providing information necessary to locate an unserved
3-60 party;
3-61 (C) evaluate [all relevant information
3-62 concerning each of the guidelines under this chapter and] the
3-63 parties' compliance with temporary orders and with the service
3-64 plan;
3-65 (D) evaluate whether the child's placement in
3-66 substitute care meets the child's needs and recommend other plans
3-67 or services to meet the child's special needs or circumstances;
3-68 (E) describe the permanency plan for the child
3-69 and recommend actions necessary to ensure that a final order
4-1 consistent with that permanency plan is rendered before the date
4-2 for dismissal of the suit under this chapter; and
4-3 (F) [(2) recommend one of the following actions:]
4-4 [(A) that the child be returned to the child's
4-5 home and that the suit be dismissed;]
4-6 [(B) that the child be returned to the child's
4-7 home with the department or other agency retaining conservatorship;]
4-8 [(C) that the child remain in substitute care
4-9 for a specified period and that the child's parents continue to
4-10 work toward providing the child with a safe environment;]
4-11 [(D) that the child remain in substitute care
4-12 for a specified period and that termination of parental rights be
4-13 sought under this code;]
4-14 [(E) that a child who has resided in substitute
4-15 care for at least 18 months be placed or remain in permanent or
4-16 long-term substitute care because of the child's special needs or
4-17 circumstances; or]
4-18 [(F) that other plans be made or other services
4-19 provided in accordance with the child's special needs or
4-20 circumstances; and]
4-21 [(3)] with respect to a child 16 years of age or
4-22 older, identify the services needed to assist the child in the
4-23 transition to adult life.
4-24 (c) A parent whose parental rights are the subject of a suit
4-25 affecting the parent-child relationship, the attorney for that
4-26 parent, or the child's attorney ad litem or guardian ad litem may
4-27 file a response to the department's or other agency's report filed
4-28 under Subsection (b). A response must be filed not later than the
4-29 third day before the date of the hearing.
4-30 SECTION 9. Section 263.304, Family Code, is amended to read
4-31 as follows:
4-32 Sec. 263.304. INITIAL PERMANENCY [REVIEW] HEARING; TIME.
4-33 Not later than the 180th day after the date the court renders a
4-34 temporary order appointing the department as temporary managing
4-35 conservator of a child [of the conclusion of the full adversary
4-36 hearing under Chapter 262], the court shall hold a permanency
4-37 hearing to review the status of, and permanency plan for, the [a]
4-38 child to ensure that a final order consistent with that permanency
4-39 plan is rendered before the date for dismissal of the suit under
4-40 this chapter [in substitute care in the court's jurisdiction,
4-41 including the time for the completion of the plan and the projected
4-42 date for the achievement of the child's permanency plan].
4-43 SECTION 10. Section 263.305, Family Code, is amended to read
4-44 as follows:
4-45 Sec. 263.305. SUBSEQUENT PERMANENCY [REVIEW] HEARINGS. A
4-46 subsequent permanency hearing before entry of a final order
4-47 [Subsequent review hearings] shall be held [not earlier than 5 1/2
4-48 months and] not later than the 120th day [seven months] after the
4-49 date of the last permanency hearing in the suit. For [unless,
4-50 for] good cause shown or on the court's own motion [by a party],
4-51 the court may order more frequent hearings [an earlier hearing is
4-52 approved by the court].
4-53 SECTION 11. Section 263.306, Family Code, is amended to read
4-54 as follows:
4-55 Sec. 263.306. PERMANENCY [REVIEW] HEARINGS: PROCEDURE. At
4-56 each permanency [review] hearing the court shall [determine]:
4-57 (1) identify [the identity of] all persons or parties
4-58 present at the hearing or those given notice but failing to appear;
4-59 (2) review the efforts of the department or another
4-60 agency in:
4-61 (A) attempting to locate all necessary persons;
4-62 (B) requesting service of citation; and
4-63 (C) obtaining the assistance of a parent in
4-64 providing information necessary to locate an absent parent;
4-65 (3) return the child to the parent or parents if
4-66 [whether] the child's parent or parents are willing and able to
4-67 provide the child with a safe environment and the return of the
4-68 child is in the child's best interest;
4-69 (4) return the child to a person or entity, other than
5-1 a parent, entitled to service under Chapter 102 if the person or
5-2 entity is willing and able to provide the child with a safe
5-3 environment and the return of the child is in the child's best
5-4 interest;
5-5 (5) evaluate the department's efforts to identify
5-6 relatives who could provide the child with a safe environment, if
5-7 the child is not returned to a parent or another person or entity
5-8 entitled to service under Chapter 102;
5-9 (6) evaluate the parties' compliance with temporary
5-10 orders and
5-11 [(3) the extent to which the child's parents have
5-12 taken the necessary actions or responsibilities toward achieving
5-13 the plan goal during the period of the service plan and the extent
5-14 to which the department or other authorized agency has provided
5-15 assistance to the parents as provided in] the service plan;
5-16 (7) determine [(4)] whether:
5-17 (A) the child continues to need substitute care;
5-18 (B) [and whether] the child's current placement
5-19 is appropriate for meeting the child's needs; and
5-20 (C) other plans or services are needed to meet
5-21 the child's special needs or circumstances;
5-22 (8) if the child is placed in institutional care,
5-23 determine whether efforts have been made to ensure placement of the
5-24 child in the least restrictive environment consistent with the best
5-25 interest and special needs of the child;
5-26 (9) if the child is 16 years of age or older, order
5-27 services that are needed to assist the child in making the
5-28 transition from substitute care to independent living if the
5-29 services are available in the community;
5-30 (10) determine plans, services, and further temporary
5-31 orders necessary to ensure that a final order is rendered before
5-32 the date for dismissal of the suit under this chapter; and
5-33 (11) determine the date for dismissal of the suit
5-34 under this chapter and give notice in open court to all parties of:
5-35 (A) the dismissal date;
5-36 (B) the date of the next permanency hearing; and
5-37 (C) the date the suit is set for trial.
5-38 [(5) a date for achieving the child's permanency plan;]
5-39 [(6) if the child has been in substitute care for not
5-40 less than 18 months, the future status of the child and the
5-41 appropriateness of the date by which the child may return home and
5-42 whether to render further appropriate orders;]
5-43 [(7) if the child is in substitute care outside the
5-44 state, whether the out-of-state placement continues to be
5-45 appropriate and in the best interest of the child;]
5-46 [(8) whether the child's parents are willing and able
5-47 to provide the child with a safe environment without the assistance
5-48 of a service plan and, if so, return the child to the parents;]
5-49 [(9) whether the child's parents are willing and able
5-50 to provide the child with a safe environment with the assistance of
5-51 a service plan and, if so, return the child or continue the
5-52 placement of the child in the child's home under the department's
5-53 or other agency's supervision;]
5-54 [(10) whether the child's parents are presently
5-55 unwilling or unable to provide the child with a safe environment,
5-56 even with the assistance of a service plan, and, if so, order the
5-57 child to remain under the department's or other agency's managing
5-58 conservatorship for a period of time specified by the court;]
5-59 [(11) whether a long-term substitute care placement is
5-60 in the child's best interest because of the child's special needs
5-61 or circumstances and, if so, begin a long-term substitute care
5-62 placement and if the child is placed in institutional care, whether
5-63 efforts have been made to ensure placement of the child in the
5-64 least restrictive environment consistent with the best interest and
5-65 special needs of the child;]
5-66 [(12) whether a child is 16 years of age or older and,
5-67 if so, order the services that are needed to assist the child in
5-68 making the transition from substitute care to independent living if
5-69 the services are available in the community;]
6-1 [(13) whether the child has been placed with the
6-2 department under a voluntary placement agreement and, if so, order
6-3 that the department will institute further proceedings or return
6-4 the child to the parents;]
6-5 [(14) whether the department or authorized agency has
6-6 custody, care, and control of the child under an affidavit of
6-7 relinquishment of parental rights naming the department managing
6-8 conservator and, if so, direct the department or authorized agency
6-9 to institute further proceedings; and]
6-10 [(15) whether parental rights to the child have been
6-11 terminated and, if so, determine whether the department or
6-12 authorized agency will attempt to place the child for adoption.]
6-13 SECTION 12. Chapter 263, Family Code, is amended by adding
6-14 Subchapter E to read as follows:
6-15 SUBCHAPTER E. PLACEMENT REVIEW HEARINGS
6-16 Sec. 263.401. PLACEMENT REVIEW AFTER FINAL ORDER. (a) If
6-17 the department has been named as a child's managing conservator in
6-18 a final order that does not include termination of parental rights,
6-19 the court shall conduct a placement review hearing at least once
6-20 every six months until the child becomes an adult.
6-21 (b) If the department has been named as a child's managing
6-22 conservator in a final order that terminates a parent's parental
6-23 rights, the court shall conduct a placement review hearing at least
6-24 once every six months until the date the child is adopted or the
6-25 child becomes an adult.
6-26 (c) Notice of a placement review hearing shall be given as
6-27 provided by Rule 21a, Texas Rules of Civil Procedure, to each
6-28 person entitled to notice of the hearing.
6-29 (d) The following are entitled to not less than 10 days'
6-30 notice of a placement review hearing:
6-31 (1) the department;
6-32 (2) the foster parent or director of the group home or
6-33 institution in which the child is residing;
6-34 (3) each parent of the child;
6-35 (4) each possessory conservator or guardian of the
6-36 child;
6-37 (5) the child's attorney ad litem and volunteer
6-38 advocate, if the appointments were not dismissed in the final
6-39 order; and
6-40 (6) any other person or agency named by the court as
6-41 having an interest in the child's welfare.
6-42 (e) The court may dispense with the requirement that the
6-43 child attend a placement review hearing.
6-44 Sec. 263.402. PLACEMENT REVIEW REPORT. (a) Not later than
6-45 the 10th day before the date set for a placement review hearing,
6-46 the department or other authorized agency shall file a placement
6-47 review report with the court and provide a copy to each person
6-48 entitled to notice under Section 263.401(d).
6-49 (b) For good cause shown, the court may order a different
6-50 time for filing the placement review report or may order that a
6-51 report is not required for a specific hearing.
6-52 (c) The placement review report must:
6-53 (1) evaluate whether the child's current placement is
6-54 appropriate for meeting the child's needs;
6-55 (2) evaluate whether efforts have been made to ensure
6-56 placement of the child in the least restrictive environment
6-57 consistent with the best interest and special needs of the child if
6-58 the child is placed in institutional care;
6-59 (3) identify the services that are needed to assist a
6-60 child who is at least 16 years of age in making the transition from
6-61 substitute care to independent living if the services are available
6-62 in the community;
6-63 (4) identify other plans or services that are needed
6-64 to meet the child's special needs or circumstances; and
6-65 (5) describe the efforts of the department or
6-66 authorized agency to place the child for adoption if parental
6-67 rights to the child have been terminated and the child is eligible
6-68 for adoption.
6-69 Sec. 263.403. PLACEMENT REVIEW HEARINGS; PROCEDURE. At each
7-1 placement review hearing, the court shall determine whether:
7-2 (1) the child's current placement is appropriate for
7-3 meeting the child's needs;
7-4 (2) efforts have been made to ensure placement of the
7-5 child in the least restrictive environment consistent with the best
7-6 interest and special needs of the child if the child is placed in
7-7 institutional care;
7-8 (3) the services that are needed to assist a child who
7-9 is at least 16 years of age in making the transition from
7-10 substitute care to independent living are available in the
7-11 community;
7-12 (4) other plans or services are needed to meet the
7-13 child's special needs or circumstances; and
7-14 (5) the department or authorized agency has exercised
7-15 due diligence in attempting to place the child for adoption if
7-16 parental rights to the child have been terminated and the child is
7-17 eligible for adoption.
7-18 SECTION 13. Section 264.009, Family Code, is amended to read
7-19 as follows:
7-20 Sec. 264.009. LEGAL REPRESENTATION OF DEPARTMENT. (a) In
7-21 [Except as provided by Subsection (b), in] any action under this
7-22 title, the department shall be represented in court by the:
7-23 (1) county attorney, district attorney, or criminal
7-24 district attorney [prosecuting attorney who represents the state in
7-25 criminal cases in the district or county court] of the county where
7-26 the action is brought; or
7-27 (2) an attorney who is employed by the department or
7-28 who has entered into a contract with the department as provided by
7-29 Subsection (c) to provide such representation [attorney general].
7-30 (b) The department may enter into a contract with a county
7-31 attorney, district attorney, or criminal district attorney to
7-32 provide reimbursement of the costs of representation of the
7-33 department from any available state or federal funds.
7-34 (c) The department may contract with private attorneys to
7-35 represent the department in actions under this title.
7-36 (d) The department may employ attorneys to represent the
7-37 department in actions brought under this title. [In a county with
7-38 a population of 2,800,000 or more, in an action under this title,
7-39 the department shall be represented in court by the:]
7-40 [(1) attorney who represents the state in civil cases
7-41 in the district or county court of the county where the action is
7-42 brought; or]
7-43 [(2) attorney general.]
7-44 SECTION 14. Sections 263.308 and 263.309, Family Code, are
7-45 repealed.
7-46 SECTION 15. (a) This Act takes effect January 1, 1998.
7-47 (b) Except as provided by Subsection (c) of this section,
7-48 this Act applies to a pending suit affecting the parent-child
7-49 relationship regardless of whether the suit was commenced before,
7-50 on, or after the effective date of this Act.
7-51 (c) If the Department of Protective and Regulatory Services
7-52 has been appointed temporary managing conservator of a child before
7-53 the effective date of this Act, the court shall establish a date
7-54 for dismissal of the suit not later than the second anniversary of
7-55 the date of the next hearing conducted under Chapter 263, Family
7-56 Code, unless the court has rendered a final order before the
7-57 dismissal date.
7-58 SECTION 16. The importance of this legislation and the
7-59 crowded condition of the calendars in both houses create an
7-60 emergency and an imperative public necessity that the
7-61 constitutional rule requiring bills to be read on three several
7-62 days in each house be suspended, and this rule is hereby suspended.
7-63 * * * * *